Officer Cell Phone Search Case Heading To Trial

On August 22, 2014, the 113th class of the Port Authority Police Department (PAPD) graduated from police academy training. On that day, all of the graduates became probationary police officers in the PAPD. The following day, some of the officers organized a post-graduation event at a beer garden in Jersey City, NJ. Following that event, approximately 95 officers and several academy instructors continued to an after-party at the Texas Arizona Bar & Grill in Hoboken, NJ.

The Texas Arizona after-party was rowdy. There were reports that officers engaged in a wide range of misconduct, including damaging property, stealing beer, inappropriately touching a patron’s breast and a barmaid’s buttocks, fighting with and pulling a knife on a bouncer, and jumping turnstiles at the Hoboken train station. The bouncer at the Texas Arizona stated it was the “worst night” he had “ever worked.”

During the after-party, the general manager of the Texas Arizona called Sergeant Kevin Cottrell of the PAPD to report the misconduct. Following that call, Sergeant Cottrell went to the Texas Arizona and ordered the officers to leave. The officers openly defied his order.

Internal affairs investigators eventually interviewed all the officers who were present at the Texas Arizona after-party. Before the interviews began, the officers reported to a gymnasium at the Port Authority Tech Center, where they were told that if they “in any way did not cooperate with the investigation, they could face termination.”

The Department learned that some officers who had attended the Texas Arizona after-party had used a cell phone application called GroupMe to communicate with other officers about the after-party. GroupMe allows a group of individuals to participate in a private chatroom that the entire group can view. The Department then instructed investigators to ask officers whether they participated in GroupMe chats. Where the officer had participated in such a chat, the investigators requested to view the messages. A supervisor told the investigators to inform the officers that the search was “voluntary” and that they had the opportunity to first speak with a union representative.

Pursuant to these instructions, investigators requested and reviewed the contents of the personal cell phones of 36 officers. At the start of each of the 36 interviews, the officers were again informed they had to “cooperate in this investigation,” and that “you are reminded that you must cooperate in this investigation and answer our questions both honestly and accurately.” The investigators did not inform the officers they had the right to refuse the cell phone search.

Citing the Supreme Court’s 2014 decision in Riley v. California, a federal court refused to dismiss a lawsuit filed by the Port Authority Police Benevolent Association, the officers’ labor organization. In Riley, the Supreme Court held that a warrant is generally required before law enforcement officers may search a cell phone. Under Riley, absent exigent circumstances or similar “case-specific exceptions,” law enforcement officers are not permitted to search an individual’s cell phone without a warrant.
The trial judge found that under Riley, “a reasonable jury could therefore find that the Department’s investigators and supervisors all either directly participated in warrantless searches of officer cell phones, created the warrantless cell phone search procedures that others followed, or allowed these warrantless cell phone searches to continue. Thus, absent a case-specific exception, a reasonable jury could find that these Defendants were all personally involved in violating the officers’ Fourth Amendment rights.”

The Department argued that the searches were “work-related” and thus exempt from the Fourth Amendment’s warrant requirement. The Court disagreed, finding that “the fact that Defendants were engaging in a purportedly work-related investigation did not permit them to conduct warrantless searches of items outside of the workplace context. It is undisputed that the cell phones at issue here were purely personal. They were not the property of or paid for by the Port Authority. Officers had a strong expectation of privacy in these personal devices. Indeed, as the Supreme Court noted in Riley, the privacy interest in a person’s cell phone is similar to, if not greater than, the privacy interest in one’s home.”

The Department also argued that the officers consented to the warrantless searches of the phones. Again, the Court was unpersuaded, finding that “a reasonable jury could find that the officers’ acquiescence was coerced. Before being interviewed, all of the officers were told that if they did not cooperate with the investigation, they could be fired. Before permitting investigators to search their cell phones, officers were told a second time that they were required to cooperate. Many officers understood these instructions to mean they could be fired if they did not accede to a search of their cell phones.

“The investigators never corrected that understanding by informing the officers that they had the right to refuse the cell phone searches. Under these circumstances, a reasonable jury could find that the officers were required to accede to the cell phone searches, making their consent a mere acquiescence in a show of authority. A reasonable jury could also find that the officers were given the choice between losing their jobs and consenting to the cell phone search, vitiating that consent.”

Port Authority PBA v. Port Authority of New York and New Jersey, 2017 WL 4403310 (S.D. N.Y. 2017).